DOJ Releases Controversial 'Torture Memos'

April 16, 2009

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President Obama has resisted calls by some top democrats to open some type of investigation into the Bush administration's conduct during the war on terror. The release of these documents, coupled with the leak a few weeks ago to the New York Review of Books of the ICRC report could reenergize the debate.

History of the Legal Opinions

It was in 2002 that the OLC first began getting requests from the CIA for legal guidance.

The CIA began capturing highly valued detainees such as Al Qaeda lieutenant Abu Zubaydah in 2002 and was secretly holding them in foreign detention facilities abroad. CIA officers were concerned they didn't have enough guidance on which interrogation techniques would be acceptable.

In August of 2002, Bybee, then head of the OLC, signed the two legal opinions that are widely believed to be written by his deputy, John Yoo. The CIA welcomed the memos, which laid out some legal guidelines.

According to one former top CIA official, "We were desperately waiting for these memos to come out to give us clarity."

George Tenet, former head of the CIA referenced the memos in a book he authored: "Despite what Hollywood might have you believe, in situations like this you don't call in the tough guys; you call in the lawyers. It took until August to get clear guidance on what Agency officers could legally do. Without such legal determinations from the Department of Justice, our officers would have been at risk for future second guessing. "

The first memo laid out the administration's position on torture and a second gave the legal authorization for some interrogation techniques.

When the existence of the first memo was revealed by the Washington Post in June 2004, it's content caused outrage, particularly language that said torture "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

The second memo, with specific guidance on particular techniques, until today had only been released in heavily redacted form.

Both memos were later withdrawn by the Bush administration.

In December 2004, a new acting head at the OLC, Daniel Levin, released the administration's new legal position on torture.

Levin's opinion began: "Torture is abhorrent."

Levin was set to tackle the second memo on the actual techniques, but incoming Attorney General Alberto Gonzales chose a different person to head the OLC, Steven Bradbury.

By May 2005, Bradbury produced at least three more memos that were released today on interrogation procedures.

At the time, Congress was moving toward bolstering the prohibition against cruel, inhuman and degrading treatment and the Bradbury memos said that the techniques did not violate that standard.

Today's release comes a day after Richard Armitage, a high-ranking former State Department official in the Bush administration, told Al Jazeera English, that he hoped he "would've had the courage to resign" had he known more about the interrogation of detainees.